Search Orders

The courts have the power to issue a form of civil search warrant called a Search Order. This type of order was previously developed by the courts and known as an Anton Piller order - based on the title of a case of the same name. Authority to grant a Search Order is now contained in Section 7 of the Civil Procedure Act 1997. The rules relating to them are set out in Part 25 of the Civil Procedure Rules.

A Search Order is a form of injunction which requires a party to permit entry for certain persons to property in order to conduct a search for, and if necessary to seize, evidence. Such orders are often made in cases involving pirate goods, such as unauthorised video copies of popular films. These are usually applied for and obtained from the court without notice to the person who is intended to be the subject of the order, in order to ensure that there is no prospect of evidence being removed or destroyed before the search can take place. However a Search Order can be issued in any case where the court is persuaded that the defendant is the sort of person who might destroy relevant evidence in his or her possession if the order is not made.

Strictly speaking, a Search Order is not a search warrant because it does not directly empower the holder to enter or search premises. Instead, it requires the person in charge of the premises to let the holder in. However, the order has much the same effect as a search warrant, since it is a contempt of court to refuse to let the holder in.

A Search Order must be served by a supervising solicitor, but it will usually allow him or her to be accompanied by others. Those persons specified in the Search Order may only accompany the supervising solicitor. The supervising solicitor should be experienced in the area, and should not be a member or employee of the firm acting for the person who obtains the Search Order.

If you are served with a Search Order, ask the supervising solicitor for an explanation of what is going on: he or she has a duty to offer to explain the effect of the order to you fairly and in everyday language. Take a good look at the terms and conditions attached to the order, many of which explain your rights in the situation. For example, you will normally be entitled to refuse entry before 9.30 a.m. or after 5.30 p.m. or at all on Saturday and Sunday, unless the Search Order expressly states otherwise. The supervising solicitor must give you an opportunity to take legal advice. In view of the seriousness of the matter, it would be sensible to do so.

It is likely to be a very rare case in which your lawyer would advise you not to comply with the order, but you are entitled to apply to the court to ask for it to be varied or set aside, provided you do so immediately. You will, however, be required to allow the supervising solicitor to enter your premises and remain there while you make such an application.

Nearly all Search Orders will contain a provision forbidding you to tip off others - apart from your lawyer - about their existence. Often the person who has obtained the Search Order will have put in place means of telling whether others have been tipped off. He or she may have persons watching for such activity and, if you were caught arranging for others to dispose of inconvenient evidence, you would risk prison for contempt of court.

If you are an unaccompanied female and the supervising solicitor is male, then at least one other person named in the Search Order must be female and accompany the supervising solicitor on his search. Only materials covered by the terms of the Search Order may be removed from your property. If, however, such materials include items that exist only in computer readable form, then you will be required to give access to the computers with all necessary passwords to enable them to be searched, and you must arrange for the materials to be printed out. The search may only be conducted in your presence or the presence of someone who is your responsible employee.

The supervising solicitor is under a strict duty to behave responsibly. In one case where it was held that the solicitor acted oppressively, he was ordered to pay substantial compensation.

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